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Date: 04-14-2018

Case Style:

Mark Lyn Broadaway v. The State of Texas

Case Number: 03-16-00792-CR

Judge: 03-16-00792-CR

Court: TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Plaintiff's Attorney: Ms. Carly Dessauer
The Honorable Stacey M. Soule

Defendant's Attorney: Ms. Janet Burnett

Description: Appellant was arrested on October 18, 2014, for misdemeanor driving while
intoxicated. The following day, appellant requested a court-appointed attorney and provided an
affidavit of indigence. On the form affidavit, appellant swore that he was “self employed (side
jobs),” that his monthly income was $600, and that he had “available” cash of $500 and $1,200, and
that he had “$4,000 in [a] separate account” but was “behind [on] bills.” He also swore that he was
single and did not have dependents. On the same day, appellant’s request for a court-appointed
attorney was denied, and he was released from jail after posting a misdemeanor surety bond in the
amount of $1,500.
On January 6, 2015, appellant appeared at the trial court’s designation-of-attorney
docket. When asked by the presiding judge if he had hired an attorney, appellant responded: “I’m
going to represent myself.” The judge then had the following exchange with appellant about the
disadvantages of doing so:
[Trial Judge]: There are many disadvantages of doing so. I explained those—
[Appellant]: Right.
Because the parties are familiar with the facts of the case and its procedural history, we do2 not recite them in this opinion except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4. 2
[Trial Judge]: —to the audience that you were a part of back on December the 4th.
[Appellant]: Right.
[Trial Judge]: Do you recall those disadvantages?
[Appellant]: I do, and I have attorneys who are friends of the family who are advising me so I’ll be familiar with courtroom procedure.
Following this exchange, the judge advised appellant of the range of punishment for
appellant’s case and then expressly explained some of the advantages of hiring an attorney:
An attorney would talk to the prosecuting attorney on your behalf, apply for and receive all evidence that the State has against you, explain to you all defenses that might exist, explain to you the strengths and weaknesses of the State’s case, give you legal advice as to how you should proceed. You’re more likely to be found guilty if you represent yourself.
After this explanation, the judge asked appellant if he understood the disadvantages of not having
counsel, and appellant responded that he did. The judge then instructed appellant to read and sign
the “Waiver of Attorney” form if he wanted to waive his right to an attorney. After appellant signed
the “Waiver of Attorney” form, he confirmed to the judge that he had read and understood it, that
he wanted to waive his right to an attorney, and that he was not being pressured to do so. The judge
then found that appellant had “freely, voluntarily and intellectually waived [his] right to an attorney”
and approved the form. The waiver form was signed and dated by appellant and the judge.
The jury trial occurred in September 2016. Immediately after calling the case, the
trial judge stated:
3
The record should reflect that [appellant] has been representing himself. He’s been admonished on self representation and has persisted in that. This case was set about two months ago. At that time we discussed self representation again. And [appellant] had requested a continuance based on some new information which I granted and set the case for today.
The judge then asked appellant if he was telling the court that he intended to continue to represent
himself, and appellant answered that he did. Appellant also told the trial court that he did have an
attorney who was representing him.3
The State’s witnesses included the arresting officer who administered field sobriety
tests on appellant and obtained a search warrant to draw appellant’s blood, the sergeant who drew
appellant’s blood, and the forensic scientist who analyzed appellant’s blood specimen to determine
its alcohol concentration. Appellant participated in jury selection, presented opening and closing
arguments, and cross-examined the State’s witnesses. Ultimately, the jury found appellant guilty and
the trial court assessed his punishment at confinement for 90 days and a $2,000 fine but suspended
imposition of sentence and a portion of the fine and placed him on community supervision for 18
months. This appeal followed.4
The attorney who was identified by appellant was not present and did not enter an3 appearance. Appellant retained counsel for this appeal, but his counsel filed a motion to withdraw,4 which this Court granted. After his counsel had withdrawn and appellant failed to timely file his brief, this Court abated and remanded the case to the trial court to determine whether appellant still wished to prosecute his appeal and whether he was indigent. See Broadaway v. State, No. 03-16-00792-CR, 2017 Tex. App. LEXIS 9486, at *1–2 (Tex. App.—Austin Oct. 10, 2017) (mem. op., not designated for publication) (per curiam). After the case was abated and remanded, appellant filed a subsequent affidavit requesting that the trial court appoint an attorney for him. In the subsequent affidavit, appellant swore that he was employed in the “wood sales business” but that “business [was] very slow,” that he had a monthly income of $1,000, and his available cash was $320 in savings and $600 in his checking account. Following a hearing, the trial court found 4
ANALYSIS
Denial of Request for Court-Appointed Counsel
In his first point of error, appellant argues that his conviction was obtained in
violation of the Sixth Amendment because the trial court erred by failing to appoint counsel for him.
See U.S. Const. amend. VI; Lathem v. State, 514 S.W.3d 796, 801 (Tex. App.—Fort Worth 2017,
no pet.) (observing that it is “well established that every criminal defendant has the constitutional
right to assistance of counsel, although not counsel of his own choice”); see also Tex. Code Crim.
Proc. art. 1.051(a) (“A defendant in a criminal matter is entitled to be represented by counsel in an
adversarial judicial proceeding.”). As support for his position, appellant focuses on his alleged
inability to afford counsel during the pendency of this case; the alleged inadequacy of the form
affidavit that he filled out in October 2014 for requesting an attorney because it did not include a
place to list or itemize expenses; and the approximately two years between his arrest and trial.
Appellant argues that the trial court abused its discretion by denying his request for appointed
counsel and then not revisiting this request while the case was pending for approximately
two years—“when he failed to have counsel” during this time period but “needed a lawyer” because
“he could not navigate the complicated area of DWI defense.”
A defendant is indigent for purposes of the appointment of counsel if he is “not
financially able to employ counsel.” Tex. Code Crim. Proc. art. 1.051(b). Factors relevant to the
indigence determination are the defendant’s income, source of income, assets, property owned,
outstanding obligations, necessary expenses, number and ages of dependents, and spousal income
appellant indigent and appointed counsel.
5
available to the defendant; the determination is made on a case-by-case basis. McFatridge v. State,
309 S.W.3d 1, 5–6 (Tex. Crim. App. 2010) (citing Tex. Code Crim. Proc. art. 26.04(m)). Each
county should have procedures and financial standards applicable to this determination. Id. at 6
(citing Tex. Code Crim. Proc. art. 26.04(l)).
Courts use a two step-process for making the indigence determination: (1) the
defendant must make a prima facie showing of indigence, and (2) when a prima facie showing has
been made, the burden shifts to the State to show that the defendant is in fact not indigent.
Whitehead v. State, 130 S.W.3d 866, 874 (Tex. Crim. App. 2004); see McFatridge, 309 S.W.3d at
6. A trial court “is not completely free to disbelieve the defendant’s allegations concerning his own
financial status, but the trial court may disbelieve an allegation if there is a reasonable, articulable
basis for doing so, either because there is conflicting evidence or because the evidence submitted is
in some manner suspect or determined by the court to be inadequate.” Whitehead, 130 S.W.3d at
876. “A reviewing court should uphold a trial court’s ruling denying indigent status only if it finds
that the trial court, having utilized this two-step process, ‘reasonably’ believed the defendant was
not indigent.” McFatridge, 309 S.W.3d at 6.
Appellant focuses on his alleged inability to afford an attorney during the pendency
of the case. Determinations of indigence, however, “are made at the time the issue is raised.” Id.
at 5. Appellant requested a court-appointed attorney on October 19, 2014, the day after his arrest,
and the trial court denied his request on that day. That is the relevant time period then for reviewing
the trial court’s denial of his request for court-appointed counsel. See id. at 5. Further, in his sworn
statements, appellant swore that he was “self employed (side jobs)” with a monthly income of $600,
6
was single and without dependents, and had “available” cash of $500 and $1,200, and “$4,000 in [a]
separate account” although he was “behind [on] bills.” See id. at 5–6 (listing among factors relevant
to indigence determination income, assets, and number of dependents). According to his own sworn
statements, appellant had $5,700 in liquid assets, and, although he referred to being behind on bills,
he did not provide any specific amounts or list his expenses. Based on our review of his sworn
statements, we find that the trial court could have reasonably believed that appellant had not made
a prima facie showing of indigence to be entitled to appointed counsel. See id. at 6; Whitehead,
130 S.W.3d at 874. Thus, we conclude that appellant has not shown that his conviction was obtained
in violation of the Sixth Amendment based on the trial court’s denial of his request for appointed
counsel. See McFatridge, 309 S.W.3d at 5. We overrule his first point of error.5
Self-Representation
In his second and third points of error, appellant argues that his conviction was
obtained in violation of the Sixth Amendment because he did not voluntarily, knowingly, and
As support for his position that the trial court erred by denying his request for a court-5 appointed attorney, appellant also cites and provides this Court with a copy of current Williamson County Indigence Guidelines. See Tex. Code Crim. Proc. art. 26.04(l) (requiring counties to have procedures and financial standards applicable to determination of indigence). Even were we to consider these guidelines, they do not support his position. Among the listed factors to be considered are savings and bank account balances, and the Guidelines expressly provide: “To be eligible for a court appointed attorney, [the defendant’s] available liquid assets need to be under $2,500 for a misdemeanor offense and under $5,000 for a felony offense.” Here, based on appellant’s sworn statement, the trial court reasonably could have found that appellant had over $5,000 of liquid assets in October 2014. In contrast, according to his affidavit filed in October 2017, appellant swore that he had less than $1,000 in available liquid assets. Based on this subsequent affidavit, the trial court appointed him counsel. 7
intelligently waive counsel and he never asserted his right to self-representation. Appellant argues
that he represented himself because he could not afford counsel.
The Sixth and Fourteenth Amendments to the United States Constitution guarantee
criminal defendants in state courts a constitutional right to counsel and the corresponding right to
self-representation. Faretta v. California, 422 U.S. 806, 819–20 (1975); see also Tex. Code Crim.
Proc. art. 1.051(f) (“A defendant may voluntarily and intelligently waive in writing the right to
counsel.”). “However, ‘the right to self-representation does not attach until it has been clearly and
unequivocably asserted.’” Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App. 2008) (quoting
Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986) (citing Faretta, 422 U.S. at
835)). “Although a defendant need not himself have the skill and experience of a lawyer in order
competently and intelligently to choose self-representation, he should be made aware of the dangers
and disadvantages of self-representation, so that the record will establish that ‘he knows what he is
doing and his choice is made with eyes open.’” Faretta, 422 U.S. at 835 (quoting Adams v. United
States ex rel. McCann, 317 U.S. 269, 279 (1942)).
In assessing whether a defendant’s waiver of counsel was voluntarily, knowingly, and
intelligently made, courts “consider the totality of the circumstances”—“‘the particular facts and
circumstances surrounding that case, including the background, experience, and conduct of the
accused.’” Williams, 252 S.W.3d at 356 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). The
trial court, however, need not follow a “formulaic questioning” or a particular “script” to evaluate
a defendant’s waiver of counsel. Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App.
1984); see Williams, 252 S.W.3d at 356 (explaining that “trial judge has no duty to inquire into an
8
accused’s ‘age, education, background or previous mental history in every instance where an accused
expresses a desire to represent himself’” (quoting Goffney v. State, 843 S.W.2d 583, 584–85 (Tex.
Crim. App. 1992)).
Here, appellant appeared in court in January 2015 and stated to the judge that he was
“going to represent [him]self.” See Lathem, 514 S.W.3d at 808–09 (finding that defendant invoked
right to represent herself by statement “I’ll name myself as counsel” and that statement “clearly and
unequivocally apprise[d] the trial court that she want[ed] to represent herself at trial”). In response,
the judge asked appellant if he remembered the disadvantages of doing so that were discussed at a
prior hearing, and appellant answered that he did. Following this exchange, the judge advised
appellant of the range of punishment for appellant’s case and further explained disadvantages of
self-representation before asking appellant to read and sign the “Waiver of Attorney” form if he
wanted to waive his right to an attorney. After signing the “Waiver of Attorney” form, appellant
confirmed to the judge that he had read and understood the form, that he wanted to waive his right
to an attorney, and that he was not being pressured to do so.
The “Waiver of Attorney” form stated:
I, the undersigned Defendant, understand that I have the right to an attorney to assist me in the case(s) pending against me, and I further understand if I am unable to afford an attorney, I could request a court appointed attorney. I understand if I am found indigent by the Court, I would be given a court appointed attorney free of cost to me.
I further understand the dangers and disadvantages of self-representation include the following: The Assistant County Attorney representing the State knows the rules of procedure and evidence. It is presumed that with no attorney, I lack that knowledge. With no attorney, I know that I will be bound by the same rules of law, evidence and procedure. With no attorney, I will face extreme difficulty when representing myself
9
which could result in my failure to have a fair trial based on my lack of knowledge of the rules of law, evidence and procedure.
An attorney’s assistance would help me evaluate the State’s case against me, any defenses I might have, the plea I should enter, my right to a trial by jury, my right to a hearing before the Court on a Motion to Revoke probation, my right to remain silent without penalty or the right to testify and the process for appeal.
After understanding my right to an attorney, either hired by me or court appointed by the Court, and the disadvantages of self-representation, I desire to waive or give up the right and I hereby request the Court to allow me to proceed with this case without an attorney.
I further state no one has pressured or threatened me·in any way to waive my right to an attorney.
Immediately below these paragraphs, appellant signed and dated the form. Below appellant’s
signature, the trial court found: “The foregoing waivers are hereby found by the Court to be given
freely, voluntarily and intellectually by the Defendant and are hereby approved and accepted.” The
judge signed and dated the form below this finding.
Appellant does not dispute that he was admonished on the dangers of self
representation, but he argues that he represented himself because he could not afford to retain
counsel and that the designation-of-attorney docket in January 2015 at which appellant signed the
“boilerplate form” was inadequate. He focuses on the presence of other defendants at the docket
hearing and asserts that the judge knew nothing about his mental status, educational level, or his
prior experience with the legal system or criminal justice system when the judge asked appellant to
sign the “Waiver of Attorney” form. He also argues that the “Waiver of Attorney” form was not
10
tailored to his case in that it contains references to inapplicable proceedings such as a defendant’s
entitlement to a probation revocation hearing.6
A trial court, however, does not have a duty to inquire into an accused’s background
or mental history in every instance where an accused seeks self-representation. See Williams,
252 S.W.3d at 356. The record reflects that, at a previous hearing, appellant had been advised of the
dangers of self-representation, and the judge at the January 2015 hearing specifically questioned
appellant about his understanding of the disadvantages. When asked if he recalled the disadvantages
that were explained at the prior hearing, appellant responded: “I do, and I have attorneys who are
friends of the family who are advising me so I’ll be familiar with courtroom procedure.” The trial
court then advised appellant of the range of punishment for appellant’s case and explained
advantages of hiring an attorney in appellant’s particular case before asking him to read and sign the
“Waiver of Attorney” form if he wanted to waive his right to an attorney.
As to his argument that he could not afford counsel, we have already concluded that
the trial court did not err in denying appellant’s request for a court-appointed attorney in
October 2014, and appellant represented to the trial court at the designation-of-attorney docket that
he had attorneys who were advising him. Similarly, at the beginning of the jury trial in
September 2016, when asked, appellant told the court that he intended to continue to represent
himself and that he had an attorney who was representing him, although the attorney was not present.
As further support for his position that his judgment should be reversed, appellant argues6 that his rights were violated because standby counsel was not appointed. Appellant, however, did not request standby counsel and had no right to such representation. See Scarbrough v. State, 777 S.W.2d 83, 92–93 (Tex. Crim. App. 1989) (stating that defendant has no right to standby counsel or hybrid representation). 11
The record further reflects that the trial court communicated extensively with
appellant over a period of time. Before trial, appellant filed relevant motions and subpoenas. Before
and during trial, outside the presence of the jury, the trial court also actively questioned appellant
about his understanding and decision to represent himself, and appellant acted in an orderly,
appropriate, and respectful manner during the trial, including when he communicated with the trial
court, participated in jury selection, cross-examined the State’s witnesses, and delivered opening and
closing arguments. See Saunders v. State, No. 03-15-00273-CR, 2016 Tex. App. LEXIS 7239, at
*8 (Tex. App.—Austin July 8, 2016, no pet.) (mem. op., not designated for publication) (observing
that “legal competency is not required to represent oneself at trial” and that “the only material issue
is whether [the defendant] was competent to make the decision to represent himself” (citing
Scarbrough v. State, 777 S.W.2d 83, 92 (Tex. Crim. App. 1989))).
Considering the totality of the circumstances, we conclude that the record establishes
that appellant clearly and unequivocally asserted his right to self-representation and that his decision
to waive his right to counsel was voluntarily, knowingly, and intelligently made. See Faretta,
422 U.S. at 835; Williams, 252 S.W.3d at 356. Thus, we conclude that appellant has not shown that
his conviction was obtained in violation of the Sixth Amendment and overrule his second and third
points of error. See Faretta, 422 U.S. at 835; Goffney, 843 S.W.2d at 585.

Outcome: Having overruled appellant’s points of error, we affirm the judgment of conviction.

Plaintiff's Experts:

Defendant's Experts:

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